Reale v. Board of Real Estate Appraisers

Justice ERICKSON

dissenting:

I respectfully dissent. This is an original proceeding filed pursuant to C.A.R. 21 that was alternatively styled as a petition for cer-tiorari. The district court for Adams County permanently enjoined Pat Reale (Reale) from continuing to hold the office of Adams County Assessor. We elected to treat the original proceeding as a petition for certiorari before judgment under C.A.R. 50. I would affirm the district court’s permanent injunction.

The district judge made the following factual and legal determinations:

The office of county assessor is responsible for the listing and valuation of all real property located in the county. The duties-of the office include the separate appraisal of each tract or parcel of land in the county. C.R.S. 39-5-104. Each county assessor is responsible for preparing and certifying an annual Abstract of Assessment cataloging all taxable property and a Certificate of Value which is submitted to each taxing authority in the county showing the total valuation for assessment of property within the territorial 'limits of the taxing, district. C.R.S. 39-5-128. Thus, the.basic and primary responsibility of a county assessor necessarily involves the appraisal of real property.
In 1990, the Colorado General Assembly enacted C.R.S. 12-61-701, et seq., dealing with the licensure of real estate appraisers. This law was substantially amended in 1992. Section 12-61-702(1) defines an appraisal as including any valuation completed by a county assessor or any appraiser employee of any such assessor. Section 12-61-702(5) in pertinent part defines a real estate appraiser as being any person who provides, for a salary, an estimate of the value of an interest in identified real estate.
As part of the legislative enactment, C.R.S. 12-61-706 establishes four levels of licensure. These are registered appraiser, licensed appraiser, certified residential appraiser and certified general appraiser. A *1212person seeking to become a registered appraiser must have had at least fifty-five classroom hours of appraisal education and shall have passed an examination given by the plaintiff board. Each of the next three levels of licensure require progressively more education and/or experience together with the passing of an examination administered by the board. Section 12-61-714(2) requires that a county assessor shall have obtained some level of licensure by July 1,1993 or one year after taking office.

The petitioner, Reale, is the duly elected Adams County Assessor and -has served in that capacity for many years. The Colorado Board of Real Estate Appraisers (Board) is charged with the responsibility of enforcing the Real Estate Appraisers Act (Act). §§ 12-61-701 to -717, 5B C.R.S. (1991). Accordingly, the Board sought an injunction against Reale in the Adams County District Court1 pursuant to section 12-61-713, 5B C.R.S. (1991). Pat Reale was the only county assessor in Colorado’s sixty-three counties who refused and failed to comply with section 12-61-706(4)(a). As county assessor, Reale was compelled to sign an Abstract of Assessment, which the Board alleges and the district court found, could not be signed by an assessor who was not a registered appraiser. The district court entered a permanent injunction after a full hearing and enjoined Reale from continuing to hold office as the County Assessor of Adams County. The validity of that injunction is now before us.

I

The majority acknowledges that, “the question of whether a given state legislature has power to prescribe eligibility qualifications for a constitutional office depends, essentially, upon the relevant content of the State Constitution.” C.T. Foster, Annotation, Legislative Power to Prescribe Qualifications for or Consideration of Eligibility to Constitutional Offices, 34 A.L.R.2d 155 (1965). The relevant provisions of the Colorado Constitution do not foreclose the General Assembly from imposing additional qualifications for the office of county assessor.

All of the powers granted to the federal government were set forth in the United States Constitution when it was adopted. All powers in Colorado are reserved to the people when not limited by the Colorado Constitution. The power vested in the people of Colorado is exercised by the people’s elected representatives. District Landowners Trust v. Adams County, 104 Colo. 146, 89 P.2d 251 (1939).2 The General Assembly, as the representatives of the people, may enact legislation that reaches any reasonable governmental end and does not conflict with the Colorado Constitution. In People ex rel. Rhodes v. Fleming, 10 Colo. 553, 559, 16 P. 298, 301 (1887), we said:

[W]e look to the constitution, not for a grant of the power, but to ascertain wheth*1213er the exercise of such power is prohibited; and, if it is not prohibited, the act is valid,

Article XIV, section 8 of the Colorado Constitution creates the office of county assessor, and a number of other county offices. Section 8 also grants discretion to the General Assembly to determine the fund from which an assessor is paid and the time when the assessor takes office.3 The plain wording of section 8 encourages rather than inhibits the exercise of the power to set forth qualifications for a county assessor.

The majority finds an implied limitation upon the General Assembly’s power based upon the doctrine of “expressio unius est exclusio alterius” (the inclusion of one thing is the exclusion of another).4 The analysis based upon the doctrine is flawed. The doctrine of “expressio unius est exclusio alteri-us” is inapt when the constitution limits, rather than grants, power. When a constitution grants authority, no more than what is specifically enumerated is granted. Cornell v. McAllister, 121 Okla. 285, 249 P. 959 (1926). Conversely, when a constitution limits power, all powers not specifically limited are presumptively retained by the people’s representatives. District Landowners Trust, 104 Colo, at 150, 89 P.2d at 258 (1939). The Colorado Constitution preserves the power of the people to act through their elected representatives in the General Assembly in the absence of an express or inl-plied constitutional limitation.

Article XIV, section 10 is the only section in the Colorado Constitution that addresses qualifications for county offices, including the county assessor, and provides that “No person shall be eligible to any county office unless he shall be a qualified elector; nor unless he shall have resided in the county one year preceding his election.” As interpreted by the majority, the General Assembly is limited by the plain language of article XIV, section 10. The qualifications as to residency and for qualified elector status are also applicable to sheriffs, coroners, and other county offices created by section 8 of article XIV.5 The qualifications within section 10 can only be read as establishing a minimum requirement, and not as a limitation on the imposition of additional qualifications by the General Assembly.

As applied to the Colorado Constitution “expressio unius est exclusio alterius” does not reflect constitutional intent. The implication drawn from the doctrine is misleading. Where the Colorado Constitution seeks to strip the General Assembly of power, it states that the “General Assembly shall have no power.”6 If the framers of the constitution sought to limit legislative discretion in this instance, they would not have depended *1214upon implication but would have set forth an express limitation.7

II

This court addressed concerns relevant to this case in Alexander v. People, 7 Colo. 155, 2 P. 894 (1883). In Alexander, Article XIV, section 2 of the Colorado Constitution provided that “no county seat shall be removed unless a majority of the qualified electors of the county ... vote therefor.” Alexander at 157, 2 P. at 894. A subsequent act by the General Assembly declared that “not less than two-thirds of all the legal votes cast shall be necessary to effect the removal of the county seat of any county in this state.” Id.

In upholding the statute, Alexander held that “[ljegal presumptions are in favor of the integrity and wisdom of legislators, as well as the validity of their enactments.” Id. at 166, 2 P. at 900. We must presume such validity until a constitutional conflict is shown beyond a reasonable doubt. Id.; see Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 6 L.Ed. 606 (1827).8

Yenter v. Baker, 126 Colo. 232, 248 P.2d 311 (1952), also supports a finding that the General Assembly may impose additional qualifications upon constitutionally-created offices. The court in Yenter held that where “the Constitution as part of a self-executing provision sets a limitation, the legislature may not make any other limitation than that provided in the Constitution.” Id. at 241, 248 P.2d at 316. The provisions at issue in this ease cannot be considered' “self-executing”, especially in light of the numerous pieces of ancillary legislation passed to supplement them. See n. 11; see also Black’s Law Dictionary 1220 (5th ed. 1979) (defining “self-execution constitutional provision”: “[cjonsti-tutional provision is not ‘self-executing’ when it merely indicates principles without laying down rules giving them force of law”).

Ill

A legislature may impose additional qualifications for constitutional offices if the constitutional provision is general and stated in the negative. Both article VII, section 6, and Article XIV, section 10 are stated in the negative and limit the elected office by commencing with the statement “No person shall be eligible.” The negative construction creates grounds for disqualification, but leaves the legislature free to impose additional qualifications. See Legislative Power to Prescribe Qualifications, 34 A.L.R. at 167.

In Darrow v. People, 8 Colo. 417, 8 P. 661 (1885), the court upheld the imposition of additional statutory requirements beyond the Colorado constitutional mandate that “no person, except a qualified elector, shall be elected or appointed to any civil or military office in the state.” Colo. Const. art. VII, § 6. Darrow held that the General Assembly was not precluded from enacting legislation that required payment of taxes as a qualification for being an alderman in Denver and said:

But it will be observed that the language used is negative in form; that it simply prohibits the election or appointment to office of one not a qualified elector ... other (Qualifications are absolutely essential to the efficient performance of the duties connected with almost every office. And certainly no doubtful implication should be favored for the purpose of denying the *1215right to demand such additional qualifications as the nature of the particular office may reasonably require. We do not believe that the framers of the constitution, by this provision, intended to say that the right to vote should be the sole and exclusive test of eligibility to all civil offices, except as otherwise provided in the instrument itself; that no additional qualifications should ever be demanded, and no other disqualifications should be imposed.

Id. at 420-21, 8 P. at 663-64.9

The majority also cites Boughton v. Price, 70 Idaho 243, 215 P.2d 286 (1950). In Boughton, the constitutional requirements for district court judge did not bar seventy-year-old candidates from seeking the office but an Idaho statute did. The Idaho Supreme Court, in upholding the statute, said:

[Wjhere the constitution affirmatively and clearly prescribes the qualifications for eligibility for a constitutional office, it is not within the power of the legislature to change, add to or take from such qualifications unless granted such power by the constitution.
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[W]here the constitution has imposed some qualifications, •particularly in negative form, upon the constitutional officers, but not exclusive ones, the legislature may add such others as are reasonable and proper and not in conflict with the constitutional provisions: Glasco v. State Election Board, 121 Okla. 119, 248 P. 642 [ (1926) ]; State ex rel. Hartford v. Craig, 132 Ind. 54, 31 N.E. 352, 16 L.R.A. 688, 32 Am.St.Rep. 237 [ (1892) ]; Throop on Public Officers, p. 82; Mechon on Public Officers, Section 66, pp. 22-23; State ex rel. Workman v. Goldthait, [172 Ind. 210, 87 N.E. 133, 19 Ann.Cas. 737 (1909) ], and authorities cited therein; Fordyce v. State, [115 Wis. 608, 92 N.W. 430 (1902) ]; State ex rel. Attorney General v. Covington, 29 Ohio St. 102 [ (1876) ]; Darrow v. People, 8 Colo. 417, 8 P. 661 [ (1885) ]; State ex rel. Thompson v. McAllister, 38 W.Va. 485, 18 S.E. 770, 24 L.R.A. 343 [ (1893) ].

Id. 215 P.2d at 289, 290 (emphasis added).

The New Mexico Supreme Court reached a similar conclusion on similar grounds in Gibbany v. Ford, 29 N.M. 621, 225 P. 577 (1924):

[T]he Legislature has no power to add restrictions upon the right to hold office beyond those provided in the Constitution, because the constitutional provision is not a negative one providing that no person shall be eligible to hold an office unless he possess certain qualifications, as is often the case in other states, but is a positive provision, giving the right to every person possessing the qualifications therein set forth to hold office....

Id. 225 P. at 578 (emphasis added).

IV

The qualifications established by the Act ensure that an assessor can adequately perform his job. The legislation was enacted pursuant to a request by the Board of Real Estate Appraisers and supplements Title XI of the Financial Institutions Reform, Recovery and Enforcement Act of 1989. 12 U.S.C. *1216§ 3831 (1989). The statute requires assessors to obtain sufficient formal education to perform a real estate appraisal, something “inherently ... and inseparably connected with the county assessor’s duties.”10 As found by the trial court, “the basic and primary responsibility of a county assessor necessarily involves the appraisal of real property.” The valuation of property affects every taxpayer within the county. Legislation which requires an assessor to possess the skills necessary to carry out this duty is closely tied to the need addressed.

Because there is a sufficient “nexus ... between the office of assessor and the need to verify the skills ... by an examination,” the additional qualifications are reasonable. See Landis v. Ward, 117 Fla. 585, 158 So. 273 (1934) (holding valid a statute requiring county surveyors to be registered); State ex rel. Hehr v. Berry, 55 Ohio App. 243, 9 N.E.2d 699 (Ohio App.1936) (holding valid a requirement that county engineers be registered professional engineers or licensed registered surveyors); see also People ex rel. Odell v. Flaningam, 347 Ill. 328, 179 N.E. 823 (1932) (holding valid a requirement that superintendent of school hold a certain kind of teaching certificate); Jansky v. Baldwin, 120 Kan. 332, 243 P. 302 (1926) (same).

I would therefore affirm the district court and uphold the permanent injunction prohibiting Reale from continuing to serve as the Adams County Assessor.

. The relevant provisions are:

§ 12-61-706, 5B C.R.S. (1991). Qualifications for appraiser’s license and certification— continuing education. (1) A person applying for an appraiser’s license shall apply in such form and manner as prescribed by the board. Applicants shall have had at least fifty-five clock hours of appraisal education and training or the substantial equivalent thereof as approved by the board, and shall pass an examination developed or purchased by the board....
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(4)(a) Subject to the provisions of section 12-61-714(2), all persons holding the office of county assessor shall become licensed as provided in this subsection (4). A person applying for an appraiser’s license as a county assessor as defined in section 39-1-102(2), C.R.S., or an appraiser employee of any such assessor shall apply in such form and manner as prescribed by the board. Applicants shall have had at least fifty-five clock hours of education and training as approved by the board, and shall pass an examination developed or purchased by the board except as otherwise provided in subsection (5) of this section for the initial examination pursuant to this section. An applicant who complies with the requirements of this subsection (4) shall be issued a license and may perform all of the duties required of such a county assessor or employee thereof; except that an appraiser licensed under the requirements of this subsection (4) shall appraise only that real estate constituting the official duties of a county assessor or an employee of such assessor.

. The General Assembly is limited by the Colorado Constitution. Colorado State Civil Service Employees Ass’n v. Love, 167 Colo. 436, 448 P.2d 624 (1968); People ex rel. Rhodes v. Fleming, 10 Colo. 553, 16 P. 298 (1887).

.Art. XIV, § 8 states:

Section 8. County officers — election—term— salary. There shall be elected in each county, at the same time at which members of the general assembly are elected, commencing in the year nineteen hundred and fifty-four, and every four years thereafter, one county clerk, who shall be ex officio recorder of deeds and clerk of the board of county commissioners; one sheriff; one coroner; one treasurer who shall be collector of taxes; one county superintendent of schools; one county surveyor; one county assessor; and one county attorney who may be elected or appointed, as shall be provided by law; and such officers shall be paid such salary or compensation, either from the fees, perquisites and emoluments of their respective offices, or from the general county fund, as may be provided by law. The term of office of all such officials shall be four years, and they shall take office on the second Tuesday in January next following their election, or at such other time as may be provided by law. The officers herein named elected at the general election in 1954 shall hold their respective offices until the second Tuesday of January, 1959 (emphasis added).

. The majority also seeks to apply the same doctrine to statements from the Constitutional Convention of Colorado. Maj. op. at 1210. What the constitution did or does say is not sufficient to establish a limitation if "[tjhere is nothing therein to indicate that the convention ... intended to limit the power of the legislature to prescribe additional qualifications.” Boughton v. Price, 70 Idaho 243, 215 P.2d 286, 290 (1950).

. The majority opinion raises questions as to the constitutionality of the statutes which require a sheriff to undergo peace officer training and for coroners to possess adequate legal and medical knowledge. § 30-10-501.5, 12A C.R.S. (1986); § 30-10-601, 12A C.R.S. (1986).

. Colo. Const. art. VIII, § 2; Colo. Const. art. XIV, § 2; Colo. Const. art. XVIII, § 2; Colo. Const. art. XIX, § 2.

. The Illinois Supreme Court reasoned that:

If the framers of the Constitution had intended to take away from the Legislature the power to name disqualifications for office, other than the one named in the Constitution, it would not have been left to the very doubtful implication which is claimed from the provision under consideration.

People v. McCormick, 261 Ill. 413, 103 N.E. 1053, 1057 (1913) (quoting State v. Covington, 29 Ohio St. 102, 118 (1876)).

. The court also said that "[w]hen the lowest limit only is fixed in the fundamental law, the legislature may act without restraint in the ascending scale, as we have before stated, and having fixed in the statute the vote which shall be required, it becomes the paramount law, and nothing is left for implication." Alexander at 165, 2 P. at 899.

. The General Assembly, in reliance on Darrow, has enacted several statutes that establish qualifications to hold particular constitutionally-specified offices. See, e.g., § 30-10-501.5, 12A C.R.S. (1986) (requiring United States citizenship, a high school diploma or college degree, peace officer certification, and one hundred hours of designated training for sheriffs); § 30-10-601, 12A C.R.S. (1986 & 1994 Supp.) (expressing intent to require coroner participation in designated programs); § 30-10-901, 12A C.R.S. (1986) (requiring county surveyors to be professional land surveyors); § 30-10-706, 12A C.R.S. (1986) (disqualifying certain state officers from holding the office of county treasurer); § 12-61-714, 5B C.R.S. (1991) (requiring the licensure or certification of all acting appraisers).

The General Assembly has also enacted bond and oath requirements for a number of offices specified by the Constitution. See, e.g., § 30-10-110, 12A C.R.S. (1986) (county officers); § 30-10-401, 12A C.R.S. (1986) (county clerk); §§ 30-10-501 & -502, 12A C.R.S. (1986) (sheriff); § 30-10-701, 12A C.R.S. (1986) (treasurer); § 30-10-801, 12A C.R.S. (1986) (assessor).

. Reale claims that he acts as an “ombudsman" and "administrator," and does not perform any actual appraisals or assessments. However, the signing of an Abstract of Assessment (an evaluation of the appraisal), is a non-delegable duty that must be performed by the county assessor. Therefore, the Adams County Assessor is expected to have the qualifications to evaluate the appraisals of real property in the county.